Citation Nr: 1808038 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-20 469A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jasmin C. Freeman, Associate Counsel INTRODUCTION The Veteran served on active duty in the Marine Corps from May 2003 to May 2007. Her awards and decorations included the Global War on Terrorism Service Medal, National Defense Service Medal, and Marine Corps Good Conduct Medal. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office in Albuquerque, New Mexico (RO). The matter was subsequently transferred to the RO in Phoenix, Arizona. In August 2017, the Veteran testified before the undersigned at a travel board hearing. A copy of the transcript has been associated with the claims file. FINDING OF FACT The probative evidence of record is at least in relative equipoise that the Veteran's currently diagnosed tinnitus originated in service or is otherwise attributable to her active duty service. CONCLUSION OF LAW The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks service connection for tinnitus, which she contends is the result of noise exposure during service. Service connection may be granted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in or aggravated by active military service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for chronic disabilities, such as tinnitus, as organic diseases of the nervous system, if the disability is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for these chronic disabilities may also be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court of Appeals for Veterans Claims has held in a recent decision that tinnitus is to be considered an organic disease of the nervous system for purposes of 38 C.F.R. § 3.309 (a). Fountain v. McDonald, 27 Vet. App. 258 (2015). Tinnitus is, by definition "a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type." Dorland's Illustrated Medical Dictionary, 1914 (30th ed. 2003). As such, tinnitus is "subjective," as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. The Board notes that the Veteran's service treatment records are silent as to any complaints, treatment, or diagnosis of tinnitus. The Veteran received a VA examination in July 2011 and was diagnosed with bilateral subjective tinnitus. However, the examiner opined that since no hearing loss incurred as a result of military service and no documentation of tinnitus was noted in service treatment records, it was less likely than not that tinnitus was a result of military exposure. On VA examination in May 2014, the examiner stated that the Veteran's tinnitus was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury because the Veteran's documented hearing thresholds were not consistent with noise exposure, and the Veteran did not report tinnitus at any time during active duty. In August 2017 hearing testimony, the Veteran asserted that she was exposed to loud noises during basic training, including M-16 and .50 caliber machine guns, grenade launchers, and other weapon fire. She also performed maintenance management duties, working closely with the mechanics. The Veteran asserted that hearing protection was not feasible as she had to answer phones and have conversations across the mechanics bay. In an April 2014 statement, the Veteran stated that her noise exposure began in service and has continued since. The Board finds that in-service noise exposure has been established. The Board finds the Veteran's lay testimony to be of particular importance for this claim, as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on her lay testimony. In particular, the Board finds the Veteran competent to report ringing in the ears. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). While the July 2011 and May 2014 VA examinations provided negative nexus opinions regarding whether the Veteran's tinnitus was related to her active duty service, the Board finds that, given the Veteran's credible lay statements, the evidence is at least in relative equipoise on this matter. When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the Veteran. See 38 U.S.C. §§ 1154 (b); 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the benefit of the doubt must be resolved in favor of the Veteran and entitlement to service connection for tinnitus is warranted. ORDER Entitlement to service connection for tinnitus is granted. ____________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs